Cemetery Board v. Telophase Society of America

Decision Date26 December 1978
Citation151 Cal.Rptr. 248,87 Cal.App.3d 847
CourtCalifornia Court of Appeals Court of Appeals
PartiesCEMETERY BOARD, State of California, Plaintiff and Appellant, v. TELOPHASE SOCIETY OF AMERICA, a corporation, et al., Defendants and Respondents. Civ. 19392.
Evelle J. Younger, Atty. Gen., and Alvin J. Korobkin, Deputy Atty. Gen., for plaintiff and appellant
OPINION

KAUFMAN, Acting Presiding Justice.

Defendant, Telophase Society of America (hereafter Telophase or defendant 1), is in the business of incinerating or cremating human remains. Plaintiff, Cemetery Board (hereafter Board or plaintiff), is a statewide administrative agency charged with administering and enforcing the Cemetery Act (Bus. & Prof.Code, § 9600, et seq.) and Parts 1, 3 and 5 of Division 8 of the Health and Safety Code (§ 8100, et seq.) relating to cemeteries. Board instituted this action to enjoin Telophase from (1) "(m)aking any interments or Performing any cremations " or (2) "(o)perating the cemetery known as Cremar Cemetery . . . or cremating the bodies of deceased persons at said location without a valid, subsisting and unsuspended certificate of authority issued by" Board. (Emphasis added.) The trial court found that Telophase does not perform cremations as that term is statutorily defined, does not make interments as that term is statutorily defined, and is not operating a cemetery within the statutory definitions of that term. It therefore concluded that Telophase was not unlawfully doing or threatening to do any of those things without a certificate of authority issued by Board, and denied issuance of the injunctions. Board appeals. A consideration of the pertinent statutory provisions, which are almost nonsensical in several important respects, demonstrates that the trial court's conclusions were sound.

Before turning to the statutory language, a brief statement of the pertinent facts is appropriate. In 1974, defendant acquired Cremar Crematory by leasing the building and grounds and purchasing the retorts (furnaces) and contents of the building. The crematory is situated on land dedicated for cemetery purposes and had previously been operated in connection with an adjacent existing cemetery. Defendant is involved in providing what it calls "simple cremation services" as an alternative to the more costly services provided by the mortuary-funeral-cemetery system. Several different entities are involved in providing these services, which include several steps. While the details have varied over time, the general process is as follows: Another entity, Telomega, Inc., pursuant to a contract with defendant, registers persons in advance for the service, picks up decedents at the place of death, transports the bodies to a repository, and processes the necessary paperwork. Upon payment by the decedent's survivors of an agreed fee ($250) if the fee has not been prepaid, Telomega transports the bodies, along with death certificates and disposal permits, to defendant's crematory facility. Telomega performs these pre-cremation activities in San Diego and Orange Counties; in San Fernando Valley they are performed by Garrity Associates; and in Los Angeles County defendant performs them directly. The bodies are incinerated by defendant at the crematory, and the cremated remains are, in the vast majority of cases, transferred to the San Diego Ecumenical Conference, which scatters the ashes at sea. 2 Under a mutual understanding, defendant donates $200 per month to the Conference. In the remaining cases, the cremated remains generally are either picked up by the survivors or forwarded to a cemetery designated by the survivors for interment.

In April 1974, because the Cemetery Board was asserting jurisdiction to require defendant to obtain a certificate of authority to operate its business, it filed an application for a certificate of authority. Following an administrative hearing, the Board denied defendant's application. 3 A principal reason given for the denial was that defendant's facilities did not include a columbarium or burial park as assertedly required by Health and Safety Code section 8340. 4

Board relies primarily on Business and Professions Code section 9768 which provides in relevant part: "It is a misdemeanor for any Cemetery corporation to make any Interments or Perform any cremations without a valid, subsisting and unsuspended certificate of authority." (Emphasis added.) The trial court concluded that under the statutory definitions Telophase is not a cemetery corporation, does not make interments and does not perform cremations. We agree.

Health and Safety Code section 7009 defines interment as follows: " 'Interment' means the disposition of human remains by inurnment, entombment, or burial in a cemetery or, in the case of cremated remains, by inurnment, entombment, burial or burial at sea as provided in Section 7117." " 'Inurnment' means placing cremated remains in an urn and placing it in a niche." (Health & Saf.Code, § 7011.) " 'Niche' means a space in a columbarium used, or intended to be used, for inurnment of cremated human remains." (Health & Saf.Code, § 7016.) The trial court found that defendant does not make interments, and that finding is supported by substantial evidence. Defendant accepts remains for cremation only where arrangements have been made for disposition by other persons or entities elsewhere, primarily by burial at sea by the San Diego Ecumenical Conference. (See text accompanying fn. 2, Ante.)

Although concededly Telophase operates a crematory as defined in Health and Safety Code section 7006, 5 and incinerates human remains, it does not perform cremations within the statutory definition. Health and Safety Code section 7010 reads: " 'Cremation' means the reduction of the body of a deceased person to cremated remains in a crematory And the placement of the cremated remains in a grave, vault or niche or burial at sea as provided in Section 1717 of this code." (Emphasis added.)

Since it neither makes interments nor performs cremations, Telophase is not in violation of Business and Professions Code section 9768 whether it is a cemetery corporation or not. However, the trial court concluded it was not, and we agree. In its original articles of incorporation, the stated primary purpose of the corporation was "to conduct any one or more or all of the businesses of a cemetery." But on February 10, 1976, the articles of incorporation were amended to delete the former primary purpose and to substitute therefor "to reduce dead human bodies directly to cremated remains." Health and Safety Code section 7019 defines "cemetery corporation" as meaning "any corporation now or hereafter organized which is or may be authorized by its articles to conduct any one or more or all of the business of a cemetery . . . ." Cremating human remains without interment is not within the definition of "cemetery business" as set forth in Health and Safety Code section 7020. 6 Thus, Telophase is not a cemetery corporation within the statutory definition of that term.

There can be no question but that the court properly denied Board's request to enjoin defendant from "making any interments" or "performing any cremations" without a certificate of authority. We turn then to the propriety of the court's denial of Board's request that defendant be enjoined from "operating the cemetery known as Cremar Cemetery. . . . "

The starting point is Business and Professions Code section 9715 which provides: "Application for a certificate of authority shall be made in writing on the form prescribed by the board and filed at the principal office of the board. Such application shall be accompanied by the fee provided for in this act and must show that the cemetery authority ( 7 ) owns or is actively Operating a cemetery in this State Which is subject to the provisions of the Cemetery Act or that the applicant is in a position to commence operating a cemetery." (Emphasis added.) The question is then simply whether Telophase owns or is actively operating a cemetery subject to the provisions of the Cemetery Act.

Cemetery is defined at two places in the Health and Safety Code. Section 8100 is obviously inapplicable. It reads: "Six or more human bodies being buried at one place constitute the place a cemetery." Neither is the definition found in section 7003, which provides: " 'Cemetery' means any one, or a combination of more than one, of the following, In a place used, or intended to be used, and dedicated, for cemetery purposes : (P) (a) A burial park, for earth interments. (P) (b) A mausoleum, for crypt or vault interments. (P) (c) A crematory, or a crematory and columbarium, For cinerary interments." (Emphasis added.) Whether or not a crematory can constitute "(a) crematory . . . for cinerary interments" when the operator of the crematory is making no interments need not be decided. Telophase's crematory is not "in a place used, or intended to be used, and dedicated, for cemetery purposes."

"Cemetery purposes" is defined in Health and Safety Code section 7020, set forth in full in footnote 6, Ante. Its essential language is: " '(C)emetery purposes . . . mean(s) any and all business and purposes requisite to . . . or incident to, establishing, maintaining, operating, improving, or conducting a cemetery, interring human remains, And the care, preservation, and embellishment of Cemetery property, including . . . any activity . . . designed for the benefit, . . . convenience, education, or spiritual uplift of Property owners or persons Visiting the cemetery." (Emphasis added.)

As is all too apparent, the statutory language is virtually nonsensical. The question under Business and Professions Code section 9715 is whether defendant is operating a cemetery. Health and Safety Code section 7003 purports to define cemetery in terms of "a...

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